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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

The sentencing guidelines statute indicates that offense variable 4 (“OV 4”) should be scored 10 points where “[s]erious psychological injury requiring professional treatment occurred to the victim.” MCL 777.34(1)(a). In <em><a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20170803_C332429_53_332429.OPN.PDF" target="_blank" rel="noreferrer noopener">People v Wellman, No. 332429</a></em>, the Court of Appeals held that a score of 10 points under OV 4 may be appropriate whether or not the victim has undergone psychological treatment. A victim’s statements about psychological injury and other actions demonstrating psychological injury support a score of 10 points for OV 4.

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The case arose out of a conviction of assault with intent to commit criminal sexual conduct. Defendant was sentenced as a fourth habitual offender to serve a prison term of 5 to 25 years. Defendant appealed his sentence, arguing that there was an error in scoring OV 4 because the trial court scored OV 4 based on inaccurate information. The trial court ruled that OV 4 should be scored 10 points.

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Under the statute, MCL 777.34(1)(a), a score of 10 points is appropriate where “[s]erious psychological injury requiring professional treatment occurred to the victim.” Further, “[i]n making this determination, the fact that treatment has been sought is not conclusive.” MCL 777.34(2). Defendant argued that the record did not support a score of 10 points because it could not be proven that victim sustained a serious psychological injury from the assault, let alone one requiring professional treatment. Defendant specifically emphasized that the victim did not supply a victim impact statement or explicitly testify that defendant caused her psychological injuries.

The Court of Appeals upheld the score of 10 points for OV 4, explaining that whether or not the victim had undergone psychological treatment is irrelevant. A score of 10 points is appropriate where the events underlying the conviction did give rise to psychological injury. In a previous case, the Court of Appeals held that a victim’s “statements about feeling angry, hurt, violated, and frightened,” supported a score of 10 points for OV 4. In the present case, the victim was reluctant to testify and had difficulty appearing and testifying on the witness stand. Additionally, the victim explained that the assault was traumatic for her and that “everyday life was harder for her now.” She also testified regarding her “continuing memory loss” and digestive issues. Therefore, the victim’s statements supported a score of 10 points for OV 4.&nbsp;

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COA clarifies scoring of offense variable 4 of the Michigan Sentencing Guidelines regarding psychological injury to the victim

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COA clarifies scoring of offense variable 4 of the Michigan Sentencing Guidelines regarding psychological injury to the victim

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